Hargadine v. Van Horn

• Decision Date: 31 October 1880
• Citation: 72 Mo. 370
• Parties: HARGADINE v. VAN HORN, Appellant.
• Court: Missouri Supreme Court

72 Mo. 370

HARGADINE

v.VAN HORN, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Knox Circuit Court.--HON. JNO. C. ANDERSON, Judge.

REVERSED.

W. W. Cover for appellant.

W. C. Hollister for respondent.

NAPTON, J.

This was an action of ejectment. The plaintiff bought under a sale on an attachment, and the only question upon which our opinion is required is, whether an attachment issued without any affidavit is a nullity, or is merely an error, not affecting a purchaser in a collateral proceeding. This question was discussed and decided in the case of Bray v. McClury, 55 Mo. 128. That case was decided by a divided court, the majority of the judges holding that an affidavit in conformity to the law was essential to give the court jurisdiction. In that case there was an affidavit, but it was defective in not stating that there was any debt due from the defendant. In the present case there was no affidavit at all, that is, the paper described and referred to by the clerk as the one upon which the writ of attachment issued, was not signed by any one, and was, therefore, no affidavit. We are unable to see how any presumption can be entertained against the record that there was some other affidavit than the paper purporting to be one in the record, and as we concur in the opinion then rendered by Judge Adams, the objection is a fatal one to plaintiff's title, without considering the other points in the case. Judgment is, therefore, reversed. Judges HOUGH and HENRY concur. SHERWOOD, C. J., and NORTON, J., dissent.

SHERWOOD, C. J., DISSENTING.

I will briefly give the reasons which prevent me from concurring with the majority of my associates in the foregoing opinion. An affidavit is said to be “An oath * * reduced to writing, sworn * * to before some officer who has authority to administer it.” 1 Bouv. Law Dict., 79; 1 Tomlin's Law Dict., 52. And it is not necessary to its completeness that the party making should sign it, unless the statute expressly require such signature. Drake on Attach., § 91; Redus v. Wofford, 4 Sm. & Mar. 579; Bates v. Robinson, 8 Ia. 318; Hitsman v. Garrard, 16 N. J. L. 124. It is the official certificate which gives authenticity to the written oath, and not the signature of the affiant. I prove this by instancing an affidavit signed by the affiant, but not certified as above indicated. The statute under which the attachment proceedings were had, nowhere requires that the signature of the affiant should appear to the affidavit. 1 R. S. 1855, p. 239, § 3. Tested by the foregoing considerations, the alleged affidavit seems to have possessed more of the characteristics of an affidavit than my associates have been pleased to accord to it.

Let us try another definition, and thus bring another test to bear on the question of the validity of the proceedings before us: “An affidavit is an oath in writing, signed by the party deposing, sworn before, and attested by him who hath authority to administer the same.” 1 Bac. Ab., 146. Accepting this more full definition, we have as the component parts of an affidavit: First, the written oath; Second, the signature of the deponent; Third, the attestation of the administering of the oath by the officer who did administer it. According to the definition just quoted, if either of the elements above noted be lacking, the affidavit is not complete--is defective; but clearly it is no more defective because one of its constituents is wanting than another; no more defective if the signature of deponent is omitted than if the omission be of the attesting signature of the officer. But in the latter case, a case for the recovery of specific personal property--a case where an affidavit is just as necessary to put in motion the legal machinery, and thus confer jurisdiction, as it is in an attachment proceeding, it was held that where the justice of the peace failed to append his jurat to the affidavit, this should have been permitted in the circuit court nunc pro tunc. Bergesch v. Keevil, 19 Mo. 127. The court, in that case, evidently did not regard the written oath, as “no affidavit at all,” but merely as a defective affidavit, one which was susceptible of amendment.

Mr. Justice Napton delivered the opinion of the court in Henderson v. Drace, 30 Mo. 358, in which it was held, referring to the attachment act then in force, (and in force when the proceedings now being questioned were instituted,) (1 R. S. 1855, p. 254, § 53,) that amendments of affidavits in attachment proceedings were ...